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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for Transport v Curzon Park Ltd & Ors [2021] EWCA Civ 651 (06 May 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/651.html Cite as: [2021] WLR(D) 260, [2021] PTSR 1560, [2021] EWCA Civ 651 |
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ON APPEAL FROM THE UPPER TRIBUNAL (LANDS CHAMBER)
Mr Martin Rodger QC, Deputy Chamber President and Mr Andrew Trott FRICS
[2020] UKUT 37 (LC)
Strand, London, WC2A 2LL |
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B e f o r e :
SIR KEITH LINDBLOM, SENIOR PRESIDENT OF TRIBUNALS
and
LORD JUSTICE MOYLAN
____________________
SECRETARY OF STATE FOR TRANSPORT |
Appellant |
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- and - |
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(1) CURZON PARK LIMITED (2) QUINTAIN CITY PARK GATE BIRMINGHAM LIMITED (3) THE EASTSIDE PARTNERSHIP NOMINEE COMPANY LIMITED (4) BIRMINGHAM CITY UNIVERSITY AND BIRMINGHAM CITY COUNCIL |
Respondents |
____________________
Mr James Pereira QC & Ms Caroline Daly (instructed by Town Legal LLP) for the 1st Respondent
Mr David Elvin QC & Mr Richard Moules (instructed by BCLP LLP) for the 2nd Respondents
Mr David Elvin QC & Mr Richard Moules (instructed by Ashurst LLP) for the 3rd Respondents
Mr Richard Glover QC (instructed by Mills & Reeve LLP) for the 4th Respondents
Hearing dates : 21st & 22nd April 2021
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Crown Copyright ©
Lord Justice Lewison:
Introduction
"Whether, and if so how, in determining an application for a certificate of appropriate alternative development under section 17 [Land Compensation Act 1961] ("CAAD") the decision-maker in determining the development for which planning permission could reasonably have been expected to be granted for the purposes of section 14 LCA 1961 may take into account the development of other land where such development is proposed as appropriate alternative development in other CAAD applications made or determined arising from the compulsory acquisition of land for the same underlying scheme."
"… our answer to the preliminary issue is that in determining the development for which planning permission could reasonably have been expected to be granted for the purposes of section 14(4)(b), the decision maker is not required to assume [that] CAAD applications or decisions arising from the compulsory acquisition of land for the same underlying scheme had never been made. The decision maker must treat such applications and decisions as what they are, and not as notional applications for, or grants of, planning permission. They are not material planning considerations. Subject to those boundaries, it is for the decision maker to give the applications and decisions such evidential weight as they think appropriate."
The facts
The applications for CAADs
"Each of the CAAD applications was self-contained, in that it was restricted to development of the applicant's site alone and did not take into account development on the other three sites. If a local planning authority was faced with four contemporaneous applications for planning permission for sites close to each other the cumulative effects of the proposed development would be a material consideration in deciding whether to grant or refuse permission in each case. But the respondents contended, and the Council accepted, that in determining each of the four CAAD applications (which are not applications for planning permission) it should disregard the other applications. As a result, the Council considered each of the applications in isolation, and those which it determined before an appeal was lodged were granted in full."
The legislation
"The value of land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise."
"(1) This section is about assessing the value of land in accordance with rule (2) in section 5 for the purpose of assessing compensation in respect of a compulsory acquisition of an interest in land.
(2) In consequence of that rule, account may be taken—
(a) of planning permission, whether for development on the relevant land or other land, if it is in force at the relevant valuation date, and
(b) of the prospect, on the assumptions set out in subsection (5) but otherwise in the circumstances known to the market at the relevant valuation date, of planning permission being granted on or after that date for development, on the relevant land or other land, other than—
(i) development for which planning permission is in force at the relevant valuation date, and
(ii) appropriate alternative development."
"(3) In addition, it may be assumed—
(a) that planning permission is in force at the relevant valuation date for any development that is appropriate alternative development to which subsection (4)(b)(i) applies, and
(b) that, in the case of any development that is appropriate alternative development to which subsection (4)(b)(ii) applies and subsection (4)(b)(i) does not apply, it is certain at the relevant valuation date that planning permission for that development will be granted at the later time at which at that date it could reasonably have been expected to be granted.
(4) For the purposes of this section, development is "appropriate alternative development" if—
(a) it is development, on the relevant land alone or on the relevant land together with other land, other than development for which planning permission is in force at the relevant valuation date, and
(b) on the assumptions set out in subsection (5) but otherwise in the circumstances known to the market at the relevant valuation date, planning permission for the development could at that date reasonably have been expected to be granted on an application decided—
(i) on that date, or
(ii) at a time after that date.
(5) The assumptions referred to in subsections (2)(b) and (4)(b) are—
(a) that the scheme of development underlying the acquisition had been cancelled on the launch date,
(b) that no action has been taken (including acquisition of any land, and any development or works) by the acquiring authority wholly or mainly for the purposes of the scheme,
(c) that there is no prospect of the same scheme, or any other project to meet the same or substantially the same need, being carried out in the exercise of a statutory function or by the exercise of compulsory purchase powers, and
(d) if the scheme was for use of the relevant land for or in connection with the construction of a highway ("the scheme highway"), that no highway will be constructed to meet the same or substantially the same need as the scheme highway would have been constructed to meet."
"(1) If the value of land is to be assessed in accordance with rule (2) in section 5, the valuation must be made as at the relevant valuation date.
(2) No adjustment is to be made to the valuation in respect of anything which happens after the relevant valuation date."
(a) the vesting date, and
(b) the date when the assessment is made.
"In this Act, in relation to a compulsory acquisition in pursuance of a notice to treat, "the relevant interest" means the interest acquired in pursuance of that notice, "the relevant land" means the land in which the relevant interest subsists, and "the notice to treat" means the notice to treat in pursuance of which the relevant interest is acquired."
"The fact that applications for certificates of appropriate alternative development are made to the local planning authority lies at the heart of the matter. It supports the view that the determination as to the contents of the certificate should be arrived at by applying ordinary planning principles to the existing circumstances, not by assessing what may or may not have happened in the past."
"(1) Where the local planning authority have issued a certificate under section 17 in respect of an interest in land—
(a) the person for the time being entitled to that interest, or
(b) any authority possessing compulsory purchase powers by whom that interest is proposed to be, or is, acquired,
may appeal to the Upper Tribunal against that certificate."
General principles
i) The underlying principle is that fair compensation should be given to the owner claimant whose land has been compulsorily taken. The aim of compensation is to provide a fair financial equivalent for the land taken. The owner is entitled to be compensated fairly and fully for his loss, but the owner is not entitled to receive more than fair compensation.
ii) The basis of compensation is the value to the owner, and not its value to the public authority.
iii) One plainly relevant element in the value to the owner is the prospect of exploiting the property. The price which the land in question might reasonably be expected to fetch on the open market at the valuation date would be expected to reflect whatever development potential the land has.
"… what it gives to the owner compelled to sell is compensation - the right to be put, so far as money can do it, in the same position as if his land had not been taken from him. In other words, he gains the right to receive a money payment not less than the loss imposed on him in the public interest, but, on the other hand, no greater."
"The purpose of these provisions, in Hong Kong and England, is to provide fair compensation for a claimant whose land has been compulsorily taken from him. This is sometimes described as the principle of equivalence. No allowance is to be made because the resumption or acquisition was compulsory; and land is to be valued at the price it might be expected to realise if sold by a willing seller, not an unwilling seller. But subject to these qualifications, a claimant is entitled to be compensated fairly and fully for his loss. Conversely, and built into the concept of fair compensation, is the corollary that a claimant is not entitled to receive more than fair compensation: a person is entitled to compensation for losses fairly attributable to the taking of his land, but not to any greater amount. It is ultimately by this touchstone, with its two facets, that all claims for compensation succeed or fail."
"… should not be taken to have encroached upon the principle of equivalence, or fair compensation, unless clear words were used to show that that was the intention of the legislature."
"When granting a power to acquire land compulsorily for a particular purpose Parliament cannot have intended thereby to increase the value of the subject land. Parliament cannot have intended that the acquiring authority should pay as compensation a larger amount than the owner could reasonably have obtained for his land in the absence of the power." (original emphasis)
"The overriding principle of fairness is comprehensive, but it suffers from the drawback of being imprecise, even vague, in practical terms."
"There is a lacuna in this case only if your Lordships conclude that the underlying aim of fair compensation—compensation neither obviously in excess, nor obviously falling short, of what the claimant would have received in a no-scheme world—is not met by applying the terms of the 1961 Act, as amended, in their natural meaning. If your Lordships conclude that the natural meaning would produce an unfair result, some other construction may be called for. But that would be a matter of applying recognised, purposive principles of statutory construction, not invoking some judge-made rule which operates outside recognised principles of statutory construction."
"But Parliament has enacted a statutory code of some complexity demonstrating that it does not regard all these cases as "materially similar". For the court to try to correct the code in accordance with its perception of what is fair would amount to judicial legislation. It would upset the balance of the code which Parliament must be supposed to have considered carefully."
"I do not consider that it is right to invoke the Pointe Gourde principle, or any other principle developed by the courts, for the purpose of adding a wholly new assumption to the statutory assumptions which have been laid down by the legislature:"
"… anomaly, and hence unfairness, are very suspect grounds for justifying the addition of a non-statutory assumption to the valuation assessment."
"I accept TfL's fundamental point that it is not the role of the court to rewrite legislation by adding additional assumptions of planning permission. As Lord Denning MR said in Jelson Ltd v Minister of Housing and Local Government [1970] 1 QB 243, 250, whichever date was taken there would be anomalies: "So much so that I think we must go simply by the construction of the statute." There is a difference between legitimate purposive construction and impermissible judicial legislation."
"First, if a statute directs that property is to be valued on an open market basis as at a certain date, one would not expect any counter-factual assumptions to be made other than those which are inherent in the valuation exercise (such as the assumption that the property has been on the market and is the subject of a sale agreement on the valuation date) or those which are directed by the statute. To put the point another way, the courts below appear to have inserted a judge-made assumption into a statutory formula, which seems to be complete and self-contained."
"[22] There are many areas of the law in which an amount is to be ascertained by postulating a hypothetical transaction of one kind or another. Rating is perhaps the oldest example, for which purpose rateable value was measured by postulating the hypothetical grant of a tenancy from year to year. But hypothetical transactions abound in other areas of the law: for example compulsory acquisition, taxation and rent review clauses. Sometimes the hypothesis is statutory and sometimes it is contractual. The courts have developed a well-established set of principles that apply to both kinds of case. The most important of these is that things are to be taken as they are in reality on the valuation date, except to the extent that the instrument postulating the hypothetical transaction requires a departure from reality. In the old cases this is summarised in the Latin phrase rebus sic stantibus. In the more modern cases it has been described as the principle of reality: Hoare v National Trust (1998) 77 P & CR 366.
[23] The following points amplify the reality principle:
i) The hypothesis is only a mechanism for enabling one to arrive at a value of particular property for a particular purpose. It does not entitle the valuer to depart from the real world further than the hypothesis compels: Hoare v National Trust, 380 (Schiemann LJ). The various hypotheses must be taken no further than their terms make strictly necessary: Cornwall Coast County Club v Cardgrange Ltd [1987] 1 EGLR 146, 152. It is necessary to adhere to reality subject only to giving full effect to the hypothesis: Hoare v National Trust, 387 (Peter Gibson LJ).
ii) Giving effect to the hypothesis may require a legal impediment to the implementation of the hypothesis to be ignored or treated as overridden; but only to the extent necessary to enable the hypothesis to be effective: IRC v Crossman [1937] AC 26; The Law Land Company Ltd v Consumers' Association Ltd [1980] 2 EGLR 109; Walton v IRC [1996] STC 98 .
iii) The world of make-believe should be kept as near as possible to reality: Trocette Property Co Ltd v GLC (1972) 28 P& CR 408, 420 (Lawton LJ); Hoare v National Trust, 386 (Peter Gibson LJ). Reality must be adhered to so far as possible: Cornwall Coast County Club v Cardgrange Ltd, 150 (Scott J). The valuer should depart from reality only when the hypothesis so requires: Hoare v National Trust, 388 (Peter Gibson LJ).
iv) Where the hypothesis inevitably entails a particular consequence, the valuer must take that consequence into account: East End Dwellings Co Ltd v Finsbury BC [1952] AC 109, 132.
v) But there is a clear distinction between hypotheses expressly directed to be made and assumptions allegedly consequential on the express hypotheses. Where the alleged consequence is not inevitable, but merely possible (or even probable), then the consequence cannot be assumed to have happened: Cornwall Coast County Club v Cardgrange Ltd, 149 (Scott J).
vi) The reality principle applies as at the valuation date. Events which postdate the valuation date cannot generally be taken into account. But the purchaser will have regard to future possibilities, and it is his perception of the future possibilities that matters. There is, in this respect, a clear difference between events before and after the valuation date. What has happened before the valuation date is either known (because it really happened) or is required by the hypothesis to be assumed to have happened. But the future is unknowable. Assumptions about the future should not be made. Nor can a tribunal make findings of fact about the future. So all that a purchaser (and by extension a valuer) can do is assess the effect on current value of future possibilities."
The cancellation assumption
"It is true that all four CAAD applications were a consequence of the scheme, and that, but for the scheme they would not have been made. But in the absence of a statutory direction that is not a good enough reason to assume them away or disregard them. If the assumption in section 14(5)(a) was intended to require not only that the scheme itself be taken to have been cancelled, but that all consequences of the scheme should be assumed not to have happened, there would have been no need for the additional assumption in section 14(5)(b) that no action had been taken by the acquiring authority wholly or mainly for the purposes of the scheme."
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. … The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
Is an application for a CAAD on an adjoining site to be treated as an application for planning permission?
"The clear acceptance in Melwood of the potential relevance of post valuation date transactions has not in our judgment been rendered of no application in claims for compensation under the 1961 Act by the recent insertion of section 5A . Subsection (2) does not say that anything that happens after the valuation date "shall not be taken into account" (cf rule (3) in section 5 ). This is what it could, and no doubt would, have said if the intention had been to achieve the effect for which Mr Humphries contends. What it says is that no adjustment is to be made to the valuation in respect of anything which happens after the valuation date. "Adjustment" we take to imply an increase or decrease in value. What is excluded, therefore, is any increase or decrease in the value that the land would have had if a post valuation date event had occurred before the valuation date. If the value of the land, or an element of that value, can only be established by reference to the knowledge that the market would have had at the valuation date, post valuation date events are necessarily excluded. Thus hope value, a value based on the hope of a future event occurring, cannot be established by reference to post valuation events showing whether such hope was, or became more likely, to be fulfilled (see eg Swansea City and County Council v Griffiths, sub nom v Griffiths v Swansea City and County Council, [2004] RVR 111 ). To take such events into account could cause the valuer to increase or decrease the hope value that the land in fact had on the valuation date."
"The cases in which post-review-date transactions are admissible seem to me to stand on quite a different basis. An open market transaction at a later date may, by applying the presumption of continuity, afford a legitimate basis for an inference that a transaction on similar terms would have taken place at an earlier date. Of course the presumption may be rebutted by showing that the market, at the later date, was possessed of information not previously available. But there is no reason in principle why relevant inferences cannot be drawn from subsequent events. But this is not the kind of reasoning upon which the tenants in this case want to rely."
Return to equivalence
"Fair compensation requires that [the owner] should be paid for the value of the land to him, not its value generally or its value to the acquiring authority. As already noted, this is well established." (Emphasis added)
"Second, the basis of compensation is the value to the owner, and not its value to the public authority." (Emphasis added)
Answer to the preliminary issue
"In determining the development for which planning permission could reasonably have been expected to be granted for the purposes of section 14(4)(b) in relation to a particular parcel of land, the decision maker is not entitled to take into account CAAD applications or decisions relating to other land arising from the compulsory acquisition of land for the same underlying scheme. They are not notional applications for planning permission and are not material planning considerations."
The costs appeal
"In assessing any compensation payable to any person in respect of any compulsory acquisition, there must be taken into account any expenses reasonably incurred by the person in connection with the issue of a certificate under this section (including expenses incurred in connection with an appeal under section 18 where any of the issues are determined in the person's favour)."
"In taking such expenses into account regard shall be had to the extent to which the preliminary issue was determined in the Respondents' favour."
The Senior President of Tribunals:
"It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it "according to the intent of them that made it" (Coke 4 Inst. 330).
If it were the case that it appeared that an Act might have been better drafted, or that amendment to it might be less productive of anomalies, it is not open to the court to remedy the defect. That must be left to the Legislature.
…
"It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do" said Lord Mersey in Thompson v. Goold & Co. [1910] AC 409 , 420. "… we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself" said Lord Loreburn L.C. in Vickers, Sons & Maxim Ltd. v. Evans [1910] AC 444, 445."
Lord Justice Moylan: